SECTION 377
Author: Chetna Singhal
Symbiosis Law School, Noida
The Supreme Court has been on a roll recently, something that has been highly appreciated by both the Society and media in India as well as abroad. From the Sabrimala Judgement to the judgement on Section 377 and now Section 497, the Supreme Court has impressed upon the nation the need to bring about laws that are progressive leaving behind oppressive laws that have come from orthodox channels of history. As much as these laws are highly appreciated, what is also needed to be understood is the fact that there is still a really long way to go.
Personal Liberty and the importance on living a life with dignity has been a prime focus on all these judgements with emphasis to what Justice P.N. Bhagwati said in the Maneka Gandhi Case, “The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19.” In light of the same there are a number of other legislations and sections that demand urgent attention when it comes to being revisited and re examined in light of the recent judgements and the liberal approach adopted by the judiciary therein.
One such judgement is the Naga People’s Movement of Human Rights v. Union of India (UOI) wherein the Supreme Court repudiated all arguments raised against the arbitrary power the power to shoot under the AFSPA, the immunity to the Armed Forces, and the powers to grant permission by the Centre for prosecuting the Armed personals without adequate observations and discussing the merit of the arguments raised.
To attain a better understanding of why this is one judgement above the rest that needs immediate attention we attempt to understand the legislative history of AFSPA as well as a detailed discussion of the judgement Naga People’s Movement of Human Rights v. Union of India (UOI).
The Armed Forces Special Powers Act, 1958 has evolved from 1942 by the Lord Linlithgow ordinance which was brought about as a strict desperate attempt by the Britishers to control the ever expansive Quit India movement and save their tyrannical British regime in India by putting Indians behind the bars for exercising their freedoms as well as killing them whenever and wherever they felt necessary as coercion and example to fellow Indians. These clearly denote the origins of this Act mired in what can safely be held to be a despite attempt to save a rule by extreme coercion. This further evolved when after the independence, India found itself in the throes of an impending Civil War with some resistance coming from the Eastern States as well.
Thus even after independence and enacting a constitution that guarantees basic fundamental rights like Article 14, 19, 21 that strikes at the very roots of ominous legislations like AFSPA, it is appalling that such oppressive legislations continue to remain in force in the same form and shape with this one going a step further and introducing such provisions like the powers to shoot, which were limited to officers with a rank of a captain in the 1942 ordinance, were extended to even non-commissioned officers, thus making it more arbitrary than before.
This means that under AFSPA, an armed personnel is vested with the power to shoot a person if they have reason enough to believe that person in question can be a threat in any way. What is further more is the fact that this law also in the same vein provides immunity to the armed forces against prosecution among various other protections.
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ANALYZING THE JUDGEMENT IN NAGA PEOPLE’S MOVEMENT OF HUMAN RIGHTS V. UNION OF INDIA (UOI)
Brief Facts of the Case:
In this case there were two Writ Petitions filed under Article 32 of the Constitution of the Constitution of India, 1950 wherein the validity of the Central Act and the State Act of AFSPA as well as the notifications issued under the said enactments declaring disturbed areas in the State of Assam, Manipur and Tripura had been challenged.
Allegations were raised under these writ petitions as to the human rights violations taking place as a result of the arbitrary powers given to the armed personnel. The Act has been challenged on the ground that it violates Articles 14, 19 and 21 of the Constitution of India.
Furthermore, arguments were also raised on the declaration of disturbed areas which have now ceased to operate. Section 2 of the Armed Forces Special Powers Act 1958 was challenged under this case.
Issues raised under the judgement
- Whether Section 2(b) defining “disturbed area” is vague in as much as it does not lay down any guidelines for declaring an area to be a disturbed area.
- Whether Section 3 entails that there is no requirement of a periodic review of a declaration issued under and that a declaration once issued can operate without any limit of time.
- Whether the conferment of power to issue a declaration under Section 3 of the Central Act on the Governor of the State is invalid since it amounts to delegation of power of the Central Government.
- Whether, as regards Section 4, there is no justification for having a special law as the Armed Forces Special Powers Act because adequate provisions are contained in the Cr.P.C. to deal with a situation requiring the use of armed forces in aid of civil power.
- Whether the conferment of powers to a junior officer under Section 4 created the likelihood of the powers being misused and abused.
- Whether the protection given under Section 6 virtually provides immunity to persons exercising the powers conferred under Section 4 inasmuch as it extends the protection also to “anything purported to be done in exercise of the powers conferred by this Act”.
JUDGEMENT:
The arguments raised against the validity of the Act as well as the infringement of human rights at the hands of arbitrary powers allotted to the armed personnel has been set aside by the Supreme Court and as such the constitutional validity of this draconian legislation was upheld. Now since we are contending that this judgement needs to be revisited we bring about a discussion on the grounds that the decision was reached. It is imperative to note here that one major criticism that is against this judgement is that the same was summarized in a paragraph or two rather than going into the merits of it. It was held that under Section 6 the immunity provided is not absolute rather subject to the decision of the Central Government. Furthermore it was held that since Section 6 is subject to judicial review it does not make the same arbitrary and this Act is essential to maintaining public order and as such upholds.
It is imperative to note here that the Indian Judiciary and the approach of the same towards cases involving basic violation of the fundamental rights in India has immensely evolved since 1998 when this judgement came through, the focus now has significantly shifted to stressing emphasis on the upholding of fundamental right to life under Article 21 of the constitution thereby extending the same to implicitly include the right to environment, right to privacy that was recently recognised as a fundamental right in the case of KS Puttaswamy and Anr. V Union of Indiaand the so important right and freedom to love someone from the same sex without fear of punishment as held in the case of Navtej Singh v Union of India. The Supreme Court in the LGBT judgement has cited a plethora of international law legislations and jurisprudence while pursuing the need to upheld the fundamental rights of the LGBT community. Furthermore stress was also laid upon India’s commitment to human rights protection under the international law and India’s constitutional duty to honour these International rules and obligations.
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It is imperative here to draw attention on the fact that the provisions of international law and other international instruments that the Supreme Court has relied upon in the Navtej Singh judgement cited in also include express provisions about upholding the protection of human rights in zones of armed conflict and disturbed areas. To cite a few, Article 2(3) of the International Covenant on Civil and Political Rights which was expressly relied upon by the Supreme Court in the Navtej Singh judgement under which Section 377 was held to be unconstitutional makes it obligatory for all member nations to provide for remedies for violations of rights, even if they are carried out by people acting in official capacities. Similarly, The Universal Declaration of Human Rights states categorically that “no one shall be subjected to arbitrary arrest, detention or exile”.In light of these provisions it became expedient to discuss the Naga judgement wherein we will find that if the same provisions are similarly applied wherein the outcome would be completely different.
Law is not static, it is ever evolving ever moving to adapt to the demands of the society and as such it is imperative that impetus is provided to revisiting arbitrary judgements that are still in force even though the situation revolving the same has evolved. The judgement here under discussed is one such judgement.
AFSPA, 1958 as a legislation has been highly controversial and has been under the scanner for decades now. As a result of the issues raised under the judgement that has been adequately cited under this article demand another discussion in the light of the recent judgements and the devices relied under them to achieve the results. Furthermore, impetus on collective effect of law in light of individual freedoms has to be expanded and adopted in all such regressive judgements still enjoying the sanction of law.
From the Sabrimala Judgement to the judgement on Section 377 and now Section 497, the Supreme Court has impressed upon the nation the need to bring about laws that are progressive leaving behind oppressive laws that have come from orthodox channels of history and this streak needs to continue.
1 Maneka Gandhi vs. Union of India, 1978 SCR (2) 621
2 AIR 1998 SC 431
3 Mustafa Haji, Killing One Colonial Law at a Time – After Section 377, It’s Time to Repeal AFSPA, The Wire, (October 9, 2018, 6:15 a.m.), https://thewire.in/law/repealing-afspa-colonial-law-northeast-jammu-kashmir
4 Supra, Note 2.
5 Article 14, Right to Equality
6 Article 19, Right to Freedom
7 Article 21, Right to live with dignity
8 Supra, Note 3.
9 Supra, Note 2.
10 Supra, Note 2.
11 WRIT PETITION (CIVIL) NO 494 OF 2012
12 W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016
13 Supra note 3.